CHAPTER VIII

HABEAS CORPUS ACT (1679)

SUGGESTIONS

THE document for the Habeas Corpus Act is intituled "an act for the better securing of the liberty of the subject and for prevention of imprisonments beyond the seas." Various attempts have been made unsuccessfully to obtain the passage of two Bills, one to give a more expeditious use of the writs of Habeas Corpus in Criminal matters the other to prevent imprisonment in jails beyond the seas.

The old principle of relief from arbitrary arrest laid down in Magna Charta, and applied throughout the succeeding constitutions, always lacked a short and easy process of establishing the fact of illegal detention. At length in 1679 this famous act was passed; although defective in the promises as to bail and common law and falsehood, this statute stands as one of the most important landmarks of human liberty. It should be studied in its relation to the growth of the liberty of the subject.

For Outlines and Material, see Appendix A.

DOCUMENT

Habeas Corpus Act (1679)

Extracts from the Provisions of the Statute, 31° Car. II. c. 2.

The Statutes

1. That on complaint and request in writing by or Transliteraon behalf of any person committed and charged with tion from any crime (unless committed for treason or felony of the Realm, expressed in the warrant; or as accessory, or on susV, 935-938. See Appenpicion of being accessory, before the fact, to any dix (B) petit-treason or felony; or upon suspicion of such for full text. Note Magna petit-treason or felony, plainly expressed in the war- Charta, Art. rant; or unless he is convicted or charged in execu- 39–40. tion by legal process), the lord chancellor or any

of the twelve judges, in vacation, upon viewing a

There are various kinds made use of

copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable imin England; mediately before himself or any other of the judges; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature.

and the same, and still others, in the United States.

Blackstone

2. That such writs shall be endorsed, as granted in pursuance of this act, and signed by the person awarding them.

3. That the writ shall be returned and the prisoner counts this a brought up, within a limited time according to the "high prerogative." distance, not exceeding in any case twenty days. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours after demand a copy of the warrant of commitment, or shifting the custody of a prisoner from one to another, without sufficient reason or authority, (specified in the act,) shall for the first offence forfeit £100 and for the second offence £200 to the party grieved, and be disabled to hold his office.

5. That no person, once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of £500.

6. That every person committed for treason or felony shall, if he requires it the first week of the next term, or the first day of the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail; unless the king's witnesses cannot be produced at that time; and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his imprisonment for such imputed offence; but that no person, after the assizes shall be open for the county in which he is detained, shall be removed by habeas corpus, till after the assizes are ended; but shall be left to the justice of the judges of assize.

7. That any such prisoner may move for and obtain his habeas corpus, as well out of the chancery, or exchequer, as out of the king's bench or common pleas; and the lord chancellor or judges denying the same, on sight of the warrant or oath that the same is refused, forfeit severally to the party grieved the sum of £500.

broken in reign of

8. That this writ of habeas corpus shall run This act, as into the counties palatine, cinque ports, and other expressed in early writs, privileged places, and the islands of Jersey and was so often Guernsey. 9. That no inhabitant of England (except per- Charles I., sons contracting, or convicts praying, to be trans- that it brought ported; or having committed some capital offence about the in the place to which they are sent) shall be sent parliamenprisoner to Scotland, Ireland, Jersey, Guernsey, or tary inquiry ending in the any places beyond the seas, within or without the Petition of king's dominions; on pain that the party commit- Right, 1628. ting, his advisers, aiders, and assistants, shall forfeit Broken in the Transto the party grieved a sum not less than £500 to portation be recovered with treble costs; shall be disabled to Act in reign bear any office of trust or profit; shall incur the of George penalties of praemunire; and shall be incapable of the king's pardon.

III.

CONTEMPORARY EXPOSITION

BISHOP BURNET (1724)

It was carried by an odd artifice in the House of Lords. Lord Grey and Lord Norris were named to be the tellers. Lord Norris being a man subject to vapours, was not at all times attentive to what he was doing, so, a very fat lord coming in, Lord Grey counted him for ten as a jest at first, but seeing Lord Norris had not observed it, he went on with this misreckoning of ten; so it was reported to the house, and declared that they who were for the bill were the majority, though it indeed went on the other side; and by this means the bill was past.

GILBERT BURNET, History of His Own Time. I. 485.

CRITICAL COMMENT

BLACKSTONE'S COMMENTARIES (1765)

The oppression of an obscure individual gave birth to the famous habeas corpus act (31 Car. II. c. 2) which is frequently considered as another magna carta of the kingdom; and by consequence and analogy has also in subsequent times reduced the general method of proceeding on these writs . . . to the true standard of law and liberty.

SIR WM. BLACKSTONE, Commentaries on the Laws of England. B. III.

135-136.

CREASY (1859)

The Habeas Corpus Act also, which was passed in this reign (31 Car. II. c. 2), is of great constitutional value, though it by no means introduced any new principle into our system, or formed any such epoch in the acquisition of the national liberties as some writers represent. But it made the remedies against arbitrary imprisonment short, certain, and obtainable at all times and in all cases.

These enactments, and especially the Habeas Corpus Act, make the name of Charles II. figure creditably in our statutebook, and there is one judicial decision of this reign which established a constitutional principle of the highest value, or rather which put an end to a long-continued abuse of the most perilous character.

E. S. CREASY, Rise and Progress of the English Constitution. 269, 272.

R. C. HURD (1877)

It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Carta (if indeed it is not much more ancient), that the statute of Charles II. was enacted; but to cut off the abuses by which the government's lust of power, and its servile subtlety of crown lawyers, had impaired so fundamental a privilege.

ROLLIN C. HURD, Right of Personal Liberty. 84.

PATERSON (1877)

On May 27, 1679, the Habeas Corpus Act passed, and, after the lapse of two centuries, it has been found by experience to have made the machinery revolve so promptly and cut so clearly into the marrow of all the mischiefs attending the possession of might, regardless of right, that no king or minister, led away with the dream of power, has since sought seriously to baffle or disable it. . . . It is now a familiar code, and represents a whole armoury of strength, for every line and syllable of which each citizen would fight to the last, as for his household gods. Holt said every man should be concerned for Magna Charta. And the Habeas Corpus Act is only a natural sequel and development of Magna Charta. No dictator, whether single-handed or hydra-headed, can long breathe the same air with those who have caught the secret of its power. It appeals to the first principles of security, and to the law of nature, if any such there be. Its whole essence is nothing else than this. Every human being, who is not charged with or convicted of a known crime, is entitled to personal liberty. JAMES PATERSON, Liberty of the Subject, Security of the Person. II. 207-8.

TASWELL-LANGMEAD (1879)

It was subject, however, to three defects. (1) It fixed no limit on the amount of bail which might be demanded. (2) It only applied to commitments on Criminal or supposed Criminal charges; all other cases of unjust imprisonment being left to the habeas corpus at Common Law as it subsisted before this enactment. (3) It did not guard against falsehoods in the return. The first of these defects was remedied in 1689, by the Bill of Rights, which declared "that excessive bail ought not to be required." The other two (notwithstanding a serious attempt in 1757 to render the habeas corpus at Common Law more efficient) subsisted down to the year 1816 when they were at length removed by An Act for more effectually securing the liberty of the subject.' (56 Geo. III. c. 100.)

T. P. TASWELL-LANGMEAD, English Constitutional History. 521.